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Full-Text Articles in Law
A Malpractice-Based Duty To Disclose The Risk Of Stillbirth: A Response To Lens, Nadia N. Sawicki
A Malpractice-Based Duty To Disclose The Risk Of Stillbirth: A Response To Lens, Nadia N. Sawicki
Faculty Publications & Other Works
In Medical Paternalism, Stillbirth, & Blindsided Mothers, Lens argues that physicians who fail to disclose the risk of stillbirth to pregnant patients should be liable under the doctrine of informed consent. In this Response, I suggest that courts might be hesitant to expand informed consent in the way Lens proposes. Instead, I offer an alternative avenue for imposing liability, via traditional theories of medical malpractice.
Choosing Medical Malpractice, Nadia N. Sawicki
Choosing Medical Malpractice, Nadia N. Sawicki
Faculty Publications & Other Works
Modern principles of patient autonomy and health care consumerism are at odds with medical malpractice law's traditional skepticism towards the defenses of contractual waiver and assumption of risk. Many American courts follow a patient-protective view, exemplified by the reasoning in the seminal Tunkl case, rejecting any attempts by physicians to relieve themselves of liability on the grounds of a patient's agreement to assume the risk of malpractice. However, where patients pursue unconventional treatments that satisfy their personal preferences but that arguably fall outside the standard of care, courts have good reason to be more receptive to such defenses. This Article …